3 Blackf. 31 | Ind. | 1832
Bellozos brought an action of debt against MKinney on a sealed note, dated in 1830, for the payment of 500 dollars. Plea of payment, with the following matters of set-off: — That, in 1818, Bellows, Stone, and Brooks, as partners under the firm of Daniel Brooks 8/ Co., by their promissory note, promised to pay the defendant 35 dollars; that, in 1819, they drew a draft in favour of the defendant for 6,000 dollars on a certain steam-mill company; which draft the drawees refused to pay, having in their hands no funds of the drawers; and that, in 1820, they gave a written acknowledgment to the defendant for 83 dollars and 38 cents. The plea also states, that Bellows, Slone, and Brooks, are not resident within the state. To this plea the plaintiff demurred, and the defendant joined in demurrer. The Circuit Court gave judgment for the plaintiff.
The only question in the cause is, were the claims of the defendant the proper subjects of set-off?
The doctrine of set-off was unknown to the common law. By that law, each party had to bring a separate suit against the other for the debt he claimed. According to the civil law,
■ To remedy the manifest injustice of the common law, and allow debts in certain cases to be set off, the statutes of Geo. 1. were passed. The first of these enacts, “that where there are mutual debts between the plaintiff and defendant, or if either party sue or be sued as executor or administrator, where there are mutual debts between the testator or intestate and either party, one debt may be set against the other.” The second of these statutes enacts^ “that mutual debts may be set off, &c., though they aré deemed in law to be of a different nature.” 1 Tidd’s Prac. 580, 581. The words of our own act are, “When two or more dealing together are indebted to each other upon any contract, and one of them commences an action, if the other cannot gainsay or deny the same, he may plead payment of all, or part of the debt or demand, and give any contract, account, or receipt in evidence, which may be set forth in such plea.” R. C. 1831, p. 405. This statute of ours is substantially the same, as to the cases in which debts may be set off", with the statutes of Geo. 1. The debts must be, as they were required to be by the civil law, liquidated and due in the same right.
In the cause before us, Bellows sues McKinney on a sealed note given by the latter to the former. Against this note, M’Kinney offers to set off debts due to him by Bellows, Sit «6, and Brootcs. Here the debt sued for, and the debts offered to be set against it, are not mutual and due in the same right. The plaintiff and defendant have not in their own names the double quality of creditor and debtor. Bellows is alone the creditor of M’Kinney, but he is not alone his debtor. The attempt is, to set up a joint demand as a set-off against a separate debt; which cannot be done. In a case where the objection to a set-off was, that it
The plaintiff in error contends, that if the general rule in matters of set-off is against him, still his defence is good, as his plea avers the non-residence of the persons against whom he •claims. We cannot conceive how this circumstance of non-residence can affect the case. The question as to the set-off is, are the debts mutual and due in the same right? or, which amounts to the same thing, would Bellows be liable to a cross action against himself alone, for the debt proposed to be set off against his demand ? On that question, the residence of non-iV-<~ence of the parties can have no influence. It is true, as was said in the argument, that were Stone and Brooks dead, the set-off against the surviving partner would be supported. French v. Andrade, 6 T. R. 582. The reason of this is, the debt previously due by the partnership would exist, at law, against the survivor alone. His liability to a suit at law for the debt, is the same as if he had been the sole contractor. But that is not the case with Bellows, though his partners do not
The judgment of the Circuit Court, in favour of the plaintiff below, must be affirmed.
The judgment is affirmed with costs.
Elder v. Lasswell et al. Vol. 2, of these Rep. 349.—-Porter v. Nekervis, 4 Rand. 359.